Opinion
19-16254
10-11-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW ACOSTA, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted October 11, 2022 [**]
Appeal from the United States District Court Nos. 2:17-cv-00765-RCC, 2:05-cr-01319-RCC-1 for the District of Arizona Raner C. Collins, District Judge, Presiding
Before: FRIEDLAND, BENNETT, and BRESS, Circuit Judges.
MEMORANDUM [*]
Andrew Acosta appeals pro se from the district court's judgment denying his 28 U.S.C. § 2255 motion to vacate. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir. 2005), we affirm.
Acosta's conviction became final on October 5, 2009, when the Supreme Court denied his petition for writ of certiorari after his direct appeal. His § 2255 motion, filed on March 10, 2017, was therefore untimely. See 28 U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 527 (2003). None of Acosta's arguments to the contrary has merit. First, we agree with the district court that Mathis v. United States, 579 U.S. 500 (2016), does not provide an alternate start date for the statute of limitations under § 2255(f)(3). See Arazola-Galea v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017) ("Mathis is a clarification of existing rules rather than a new rule itself."). Acosta's contention that Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), compels a contrary conclusion is unavailing. See Shepherd v. Unknown Party, 5 F.4th 1075, 1077 (9th Cir 2021) ("Allen is limited to petitioners who received a mandatory sentence under a mandatory sentencing scheme." (internal quotation marks omitted)). Second, Descamps v. United States, 570 U.S. 254 (2013), does not help Acosta because "the Supreme Court did not announce a new rule in Descamps," Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015), and because, even if Descamps had announced a new rule, Acosta filed his motion more than one year after that decision. Third, § 2255(f)(4) is inapplicable because the court decisions Acosta invokes constitute law not fact. Finally, Acosta is not entitled to equitable tolling. Contrary to his argument, the legal landscape prior to Mathis was not an "extraordinary circumstance" that made it "impossible" for him to file a timely motion. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010).
Acosta failed to preserve the argument, raised for the first time in his reply brief, that the 2016 amended judgment restarted the statute of limitations clock. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
In any event, the amended judgment merely corrected a clerical error to conform the written judgment to the controlling, unambiguous oral pronouncement of sentence. See Gonzalez v. Sherman, 873 F.3d 763, 772 (9th Cir. 2017) (holding that a discrepancy between the written judgment and the oral pronouncement is a "scrivener's error" and correcting that error "does not lead to a new judgment because the judgment itself does not change, only the written record that erroneously reflect[ed] that judgment [changes]"); see also United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (unambiguous oral pronouncement of sentence is controlling).
We treat Acosta's remaining arguments as a motion to expand the certificate of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).
Acosta's "Motion for Consideration to Acquire Legal Help" (Docket Entry No. 72) is granted insofar as Acosta seeks consideration of the letter brief filed at Docket Entry No. 71. Insofar as Acosta seeks appointment of new counsel, that request is denied.
Acosta's request for judicial notice of "the adjudicative facts relevant to the question [of] whether [his motion] was timely filed" is denied as unnecessary. All other pending motions and requests are denied.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).